Judge Urges Considering Black for Court Post

U.S. Circuit Court of Appeals Judge Theodore McMillian

PETER SHINKLE / St. Louis Post-Dispatch 7aug03

Judge Theodore McMillian, who grew up amid blatant racism before breaking the color barrier on the 8th U.S. Circuit Court of Appeals here a quarter-century ago, hopes African-Americans will at least be considered to replace him.

U.S. Circuit Court of Appeals Judge Theodore McMillian, 84, 
takes an early retirement from the Missouri courts system. 
(Dawn Majors/P-D)

McMillian took a reduced caseload in the semiretirement known as "senior status" as of July 1. It is one of two openings on the 11-member panel.

Judge Pasco Bowman of Kansas City, who is white, took senior status Aug. 1.

A spokesman for U.S. Sen. Christopher "Kit" Bond, R-Mo., said Monday that U.S. Attorney Ray Gruender of St. Louis was likely to be President George W. Bush's nominee to the 8th Circuit. Gruender, a Republican, is white.

Bond holds major influence over the nominations as the state's senior senator of the president's party. Both vacancies involve judges from Missouri, and at least one of the replacements must come from the state to meet requirements that balance the seven-state panel.

McMillian said in an interview this week that he would like Bond to consider African-American candidates but stopped short of saying outright that Bond should recommend a black to replace him.

"I would like for them to be seriously considered," he said.

McMillian, 84, said it is important to have judges with a diversity of views and "mixed experiences," like his own frustrations with segregation.

Bond spokesman Ernie Blazar said the senator would consider McMillian's comments. Blazar noted that Bond had arranged the appointments of black St. Louisans Henry Autrey for a federal judgeship and Ron Henderson for the job of U.S. marshal.

"Senator Bond has a strong record of appointing people with diverse points of view and backgrounds to positions in law enforcement and the judiciary," Blazar said.

But McMillian noted that Bond had led the black community to believe he would support Missouri Judge Ronnie White's nomination to the federal bench, only to later reverse his position. White, who is African-American, was later named to the Missouri Supreme Court and became its chief justice.

McMillian declined to comment on whether Bond should consider White for the other 8th Circuit opening. He did say Bond might be wise to consider a candidate from the Kansas City area, having supported Gruender, from St. Louis.

U.S. Reps. Richard Gephardt and William "Lacy" Clay, both D- Mo., have urged Bush to choose White to the federal bench, even though his nomination by President Bill Clinton was rejected by the Senate after a bruising confirmation hearing.

Clay reiterated his view this week. "I stand by my recommendation. I believe that Justice White would make an excellent addition to the federal bench."

Blazar, Bond's spokesman, responded, "The White House already said no to that idea twice."

The Justice Department plays a key role in evaluating nominees. When he was a Republican senator from Missouri, Attorney General John Ashcroft opposed White's appointment to the federal bench.

The candidates being considered by Bond's staff include U.S. District Judge Fernando Gaitan Jr., a black from Kansas City, sources said. The others are white: Jean Hamilton, a federal judge in St. Louis; Jordan Cherrick, a lawyer with the Thompson Coburn firm here; and Judge Stephen N. Limbaugh Jr. of the Missouri Supreme Court.

Neither Bond's office nor the White House would comment on candidates under consideration.

Ken Lisaius, a White House spokesman, said he could not comment on whether Bush considers ethnicity an important factor in judicial appointments.

"The yardstick that is used is appointing the person that the president feels most qualified to serve," he said.

Bush nominated the second black judge ever to serve on the 8th Circuit, Levinsky Smith of Arkansas. The appeals court here has one woman, Judge Diana Murphy of Minnesota.

Appointment of a diverse judiciary has become a widely accepted policy goal in Washington. About 10 percent of the nation's 952 federal district court judges are black, the court system said last year.

That was not the kind of atmosphere in which McMillian was raised and educated. He saw life on the underside of the American dream.

"I lived through the '30s, and worked on the railroads, and have seen 'colored' toilets and 'colored' water, and been to restaurants and been refused," he said.

He was born in 1919 in a house at 901 South 14th Street, about six blocks from the U.S. Courthouse where he now has an office on the 25th floor.

In World War II, he was a second lieutenant riding on a train to Louisiana when - because of his race - he was forced to move from one car into another heated only by a coal-burning stove.

After graduating from St. Louis University Law School in 1949, he became a prosecutor in St. Louis and then took a series of judgeships that made him the first black to serve on those benches. First, in 1956, he was appointed by Gov. Phil Donnelly to the St. Louis Circuit Court, and then, in 1972, by Gov. Warren Hearnes to the Missouri Court of Appeals.

After being nominated by President Jimmy Carter, he was confirmed for the 8th Circuit in 1978.

Now, McMillian is suffering from diabetes and high blood pressure and has kidney dialysis treatments daily in his office. His wife died in 2001. He said he is trying to stick to his routine, such as working until 6 p.m.

As for the decision to take senior status, which provides him his annual pay but enables him to handle just a third of his previous caseload, he said: "I hated it."

Senior status means he can no longer vote on many cases and administrative matters.

"I just felt that I brought a different viewpoint," he said.